Jack Balkin’s bait-and-switch

This is post #5 of a multi-part series.

In Part 3 of his paper “How to regulate … social media”, Yale Professor Balkin finally gets around to defining what he means by a “healthy” and “vibrant” digital public sphere. (In a previous post, I had taken Balkin to task for his failure to define these terms.)

For Balkin, a healthy and vibrant public sphere requires four key ingredients:

  1. First off (p. 78), Balkin claims that a healthy public square requires “knowledge institutions” and “knowledge professionals” who produce knowledge and shape public opinion.
  2. Balkin further claims on pp. 78-79 of his paper that a healthy public square requires “lots of different institutions” with the qualification that these knowledge institutions “can’t all be owned or controlled by a small number of people.”
  3. Next, Balkin claims that a healthy public square requires not only a plethora of knowledge institutions {a condition, I might add, that appears to exist today}; in addition, “these institutions have to have professional norms that guide how they produce, organize, and distribute knowledge” (p. 79).
  4. Lastly, Balkin adds a fourth and final criterion that his idealized public square must meet. According to Balkin (p. 79), his idealized group of knowledge institutions and knowledge professionals must be “trustworthy and trusted” (emphasis in the original).

Once again, however, Professor Balkin has fallen prey to the Nirvana Fallacy: he presents a Utopian picture of an ideal public square, he contrasts this ideal world to the imperfect status quo, and then he assumes that government regulation would be best way to reach this state of perfection. Sigh.

But I want to make a further and deeper critique of Balkin’s ideal public square. Specifically, is it really so ideal? After all, another word for “knowledge professional” is “expert” — and one man’s trusted “expert” is another man’s dime-a-dozen “pundit”. Moreover, as Philip Tetlock has shown (see here, for example), our “experts” and “pundits” (depending on which term you prefer) have been wrong on so many issues so many times that I wonder whether we would not, in fact, be better off without them

I also want to push back on Prof Balkin’s assumption that the current status quo is so bad that it needs to be fixed through some form of government regulation — as if our government can be more trusted than Balkin’s idealized “knowledge professionals”. Even if you are inclined to agree with Balkin that a healthy public square requires “lots of different institutions”, doesn’t today’s Internet world satisfy this condition with flying colors? From Wikipedia to Google Scholar, and everything in between, today’s Internet contains a veritable plethora of knowledge institutions, especially when we compare the status quo to the awful pre-Internet age that Balkin so idolizes, when there were only three major broadcast networks.

Most importantly, notice the sneaky intellectual sleight of hand at work in this part of Professor Balkin’s paper. Balkin defines the terms “healthy” and “vibrant” by referring to concepts that also need to be defined. What, for example, do these so-called “professional norms” consist of? How can we tell when an institution is both “trustworthy and trusted”? Alas, my colleague and friend does not say. Instead, he has pulled off a classic bait-and-switch — substituting “trustworthy” and “trusted” for “healthy” and “vibrant” — circular reasoning at its finest!

Note: I will review the next part of Balkin’s paper (Part 4) in my next post …

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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1 Response to Jack Balkin’s bait-and-switch

  1. Pingback: PSA: Just say no (to the drug of social media regulation) | prior probability

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